There was only one change to the Discovery Codes but it was significant.  The legislature added language to Code of Civil Procedure Section 2025.220 with added requirements when you serve a deposition notice.  The deposition Notice must now contain:

(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:

(i)  The deposition officer.

(ii)  The entity providing the services of the deposition officer.

   (B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.

Continue Reading 2016 New Years Resolution–New Requirements for Deposition Notices

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Several times per month I receive questions from attorneys regarding a discovery dilemma.  Mostly the questions offer a novel twist on basic discovery.  However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you.   It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants.  Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer.  Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention.  I don’t think any of these are legitimate reasons for not responding to discovery.

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Are These Objections Legitimate?

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For years, parties have videotaped both the deponent as well as the lawyer asking the questions during a deposition.  The purpose is to provide a split screen video to the jury at trial which would simultaneously show the questioner and the deponent in real time.  But is it permissible?  As demonstrated below, the answer is “No”, unless the parties stipulate or the court orders it upon the showing of good cause. Continue Reading Can I Videotape Opposing Counsel During a Deposition?

DoctorPersonal Injury attorney Miles B. Cooper, a partner at Emison Hullverson LLP, wrote a very insightful article in the March, 2014 issue of  Plaintiff Magazine on the joys and pitfalls of deposing treating physicians.

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Something came up for opposing counsel at the last minute and he didn’t show. That left us – the court reporter, videographer, and me – sitting in the conference room with the treating doctor deponent, the one who had been too busy, according to his office (disinterested, I suspected) to meet me face to face. “Doctor, while you’re here,” I began . . .

Continue Reading Treating Physicians–Treat Them Right

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Somewhere in the back of your mind you are aware that discovery and Motions for Summary Judgment deadlines are looming. Yet, you really don’t pay attention to them until they are upon us usually around day 45 when you start trying to schedule experts. That is when you realize there are not enough hours in the day and days in the week. Unless you have a case that is a simple slip and fall or a fender bender, the last 100 days before trial can be daunting. Throw in a Motion for Summary Judgment or Summary Adjudication into the mix and you’re swamped. Then there is the ultimate question you ask yourself, “When am I going to find time to prepare for trial.”

The Code of Civil Procedure timeline regarding deadlines for expert disclosure, close of discovery and the last day discovery motions can be heard is demonstrated below.  Seeing it scheduled in black and white is kind of scary. Continue Reading Discovery Plan Part 4 — The Year Before Trial

Referee Time Out.jpgLast November I received the following e-mail:

Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in a meaningful way? I booked the first available date with the court, but it is not until next June and I need the responses in order to know what documents to request. Any ideas? 

It is unfortunate that the California budget crisis has so imploded civil litigation in our courts. Despite the fact that discovery is the heart and soul or your case and you are entitled to compliance with your discovery requests; law and motion departments typically give discovery motions the lowest priority on their calendar. So, what do you do? Continue Reading Is It Time to Appoint a Discovery Referee?

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During my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy.  His story went like this:

Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation.  The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London.   Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin.   Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time.  Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.

Even though this is an extreme example, it is not unusual.  The real question is what could he have done and what should you do if you find yourself in this situation.

Continue Reading When Discovery Abuse is a Trial Strategy

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When I was sent out to attend my first deposition, I had a general idea of how everything was supposed to proceed.  Unfortunately, I was immediately knocked off my game when prior to the commencement of the deposition all the lawyers agreed to the “usual stipulations.” Not wanting to look like an inexperienced newbie, I agreed.  I was also afraid to ask anyone in my office as to what the usual stipulations were let alone whether or not I did the right thing in stipulating.  It took me many depositions later to confidently demand that I wanted the stipulations on the record.  I didn’t make the request because it was the right thing to do, it was because I could finally learn what the usual stipulations were.

On her CEB Blog, Julie Brook does a wonderful job explaining what are the usual stipulations and whether or not you should stipulate.  Julie points out that the Code of Civil Procedure covers many of the usual stipulations, so there is no need to stipulate.  She also advises that you should never stipulate without putting the specific stipulations on the record.  And, finally, she outlines the stipulations that you should consider.

Even if you are not a young lawyer, I highly recommend that you read her blog titled “So Stipulated” before you go to your next deposition.